Alerts and Updates

Guidance for Employers Regarding Ebola

October 16, 2014

Although it is too soon to tell whether more Ebola infections will occur in the U.S., employers should begin to familiarize themselves with the signs and symptoms of the disease, and they may want to be prepared to address employee questions and concerns regarding workplace safety.

On September 30, 2014, the Centers for Disease Control and Prevention (CDC) confirmed the first travel-associated case of Ebola to be diagnosed in the United States. The patient died of Ebola on October 8. More recently, on October 12, 2014, a healthcare worker at Texas Presbyterian Hospital who provided care for the patient tested positive for Ebola. Her case marks the first known transmission in the U.S. A second confirmed case of Ebola of another healthcare worker at Texas Presbyterian Hospital was announced on October 15, 2014.

The CDC has stated that the 2014 Ebola epidemic is the largest Ebola outbreak in history. With more than 4,000 people having died from the disease to date, and with at least two confirmed cases of Ebola in the United States, employers and employees alike are becoming increasingly concerned about the possibility of a major outbreak in the United States.

Although it is too soon to tell whether more Ebola infections will occur in the U.S., employers should begin to familiarize themselves with the signs and symptoms of the disease, and they may want to be prepared to address employee questions and concerns regarding workplace safety. Several different laws generally require that an employer provide a safe workplace for employees. In addition, employers could be subject to liability under general tort standards if the employers are negligent in failing to provide a safe workplace.

What We Know (and Don't Know)

Ebola, previously known as Ebola hemorrhagic fever, is a rare and deadly disease caused by infection with one of the Ebola virus strains. Ebola can cause disease in humans and in nonhuman primates.

The symptoms of Ebola generally include fever (greater than 38.6°C or 101.5°F), severe headache, muscle pain, weakness, diarrhea, vomiting, abdominal (stomach) pain and unexplained hemorrhage (bleeding or bruising). The CDC states that symptoms may appear anywhere from two to 21 days after exposure to Ebola, but the average is eight to 10 days.

According to the CDC, when an infection occurs in humans, the virus can be spread in several ways to others. Specifically, Ebola is spread through direct contact with blood or body fluids of a person who is sick with Ebola, objects that have been contaminated with the virus and infected animals. The CDC states that Ebola is not spread through the air or by water or, in general, by food.

Because no FDA-approved vaccine or medicine (e.g., antiviral drug) is available for Ebola, symptoms of Ebola are treated as they appear. For additional information on this subject, please refer to the CDC website: http://www.cdc.gov/vhf/ebola/index.html.

Healthcare Employers

According to the World Health Organization (WHO), healthcare workers are at risk of infection when caring for Ebola patients if they do not wear adequate personal protection equipment and if they do not follow strictly the recommended measures for infection prevention and control.

The WHO recommends that health workers at all levels of the health system—hospitals, clinics, laboratories, health posts, laundries and transport—be briefed on the nature of the disease and how it is transmitted and follow recommended infection control precautions.

All staff handling suspected or confirmed cases of Ebola or contaminated specimens and materials should use special personal protective equipment for working with biohazards, and they also should apply hand hygiene measures, according to WHO recommendations.

For updated guidance regarding infection prevention and control recommendations for hospitalized patients with known or suspected Ebola, please visit the CDC or WHO websites.

Rights, Duties and Responsibilities of Employers and Employees

The CDC has advised that Ebola presently poses no substantial risk to the U.S. general population. Nonetheless, employers should be alert for any symptoms or signs of Ebola in or about the workplace, and they should take all reasonable measures to make the employees and the workplace as safe as possible.

The following are glimpses at some of the general employment laws that may be implicated in this situation.

ADA

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities and transportation.

For present purposes, it is unknown whether someone who has Ebola is "disabled" within the meaning of the ADA. However, assuming that a person with Ebola is disabled, within the meaning of the statute, such a person would provide a "direct threat" to his own health and safety and to the health and safety of coworkers. In such a situation, an employer may want to consider immediately removing that employee from the workplace, although that action entails some legal risk.

Next, assuming the applicability of the ADA to employees who have Ebola, the ADA: (1) regulates employers' disability-related inquiries and medical examinations for all applicants and employees; (2) prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons, unless they pose a "direct threat" (i.e., a significant risk of substantial harm even with reasonable accommodation) to employees and to others; and (3) requires reasonable accommodations for individuals with disabilities (absent undue hardship).

Under the ADA, disability-related inquiries and medical examinations of employees have to be "job-related and consistent with business necessity." A disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a "reasonable belief," based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition.

In prior guidance, the Equal Employment Opportunity Commission advised that the reasonable belief "must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination" and that assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, "not on subjective perceptions … [or] irrational fears." See Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, available at: http://www.eeoc.gov/facts/pandemic_flu.html.

Accordingly, employers cannot require employees to submit to medical testing for Ebola on a whim. An employer, for example, likely would be unable to require medical testing of an employee who has returned from traveling abroad in locations unaffected by Ebola, as there would be no direct threat. Conversely, if the employee exhibits Ebola-like symptoms and/or has been in contact with someone who has Ebola and/or has recently traveled to a country affected by the disease, an employer should lawfully be permitted to require the employee to refrain from reporting to work until medically cleared to return to work.

Employers should also be aware of the implications of both the ADA and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) when considering whether or not to share health-related information pertaining to employees.

OSHA

Under the Occupational Safety and Health Act of 1970 (OSHA), employers have overall responsibility to ensure that all practicable preventive and protective measures are taken to minimize occupational risks; that is, employers generally are required to provide a safe workplace. Among other things, employers are responsible for providing adequate information, comprehensive instruction and necessary training on occupational safety and health; consulting workers on occupational safety and health aspects related with their work; and notifying appropriate individuals of cases of occupational diseases. Employers are also required to provide adequate protective clothing and protective equipment to healthcare or other staff caring for suspected or confirmed Ebola patients.

Employees are required to report forthwith to their immediate supervisor any situation which they have reasonable justification to believe presents an imminent and serious risk to their life or health. Until the employer has taken remedial action, if necessary, the employer cannot require employees to return to a work situation where there is continuing imminent and serious risk to life or health. Additionally, employers may not retaliate against employees for expressing a safety concern.

For additional information regarding exposure to the Ebola virus, please refer to OSHA's Bloodborne Pathogens Standard (29 CFR 1910.1030), available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=10051.

NLRA

The National Labor Relations Act (NLRA) generally governs relations among employers, employees and labor unions. Collective bargaining is one of the keystones of the NLRA. The NLRA requires an employer and the representative of its employees to meet at reasonable times, as well as to confer in good faith with respect to wages, hours and other terms or conditions of employment, the negotiation of an agreement or any question arising under an agreement.

Following an Ebola outbreak, an employer may be required to make certain changes in the workplace on an expedited basis without conferring with union representatives if the employer reasonably believes the workplace to be unsafe as a consequence of Ebola-related issues.

The NLRA, like OSHA, gives employees the right to refuse to work in conditions they believe are unsafe. The employees should have a reasonable, good-faith belief that working would be unsafe, but the law protects them even if they are honestly mistaken about the risk. The two laws have slightly different standards.

For both union and nonunion employees, refusing to work because of safety concerns can be a concerted activity that is protected by the NLRA. Concerted activity usually involves more than one employee, but it can consist of one employee acting on a matter that affects other workers.

Workers' Compensation

According to WHO, Ebola and post-traumatic stress disorder, if contracted through occupational exposure, are considered occupational diseases. Workers who suffer from them as a result of work activities have the right to compensation, rehabilitation and curative services.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for the employee's spouse, child or parent who has a serious health condition.

Ebola likely qualifies as a "serious health condition" for purposes of the FMLA. Employees who are diagnosed with Ebola or who have covered family members diagnosed with Ebola may be eligible for FMLA leave.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit. Many states have similar statutes.

Employers must ensure that managers do not discriminate against employees who are African. Such discrimination could violate Title VII (concerning national origin).

Employers also should remain alert for employees' potential harassment of Africans. The harassment could be active, such as disparaging, demeaning or insulting jokes or slurs, or it could take the form of avoidance.

Steps for Employers to Consider

There are a legion of employment issues related to a potential Ebola outbreak in the workplace.

Because of the unknowns related to this dangerous disease, employers should consider taking the following steps:

  • Review and monitor the latest CDC and state or local public health assessments pertaining to Ebola.
  • Collaborate with health authorities regarding issues or questions that would arise where the employer has a reasonable basis for believing that an employee may have been exposed to Ebola or may actually have the disease.
  • Educate employees on the symptoms and signs of Ebola.
  • Be prepared to answer employee questions and concerns regarding Ebola as it relates to workplace safety.
  • Require employees to immediately report any potential symptoms of Ebola to the employer and to the appropriate health authorities.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.